Social media update for employers

By Ruth Mackey

Published: 2012.08.06 03:51 AM

Employee use of social media in the workplace is a legally evolving area that continues to be a problem for employers, who are urged to enlist the help of legal counsel in formulating social media policies. In particular, the National Labor Relations Board (NLRB) has come down hard on employers who it deems to have violated the National Labor Relations Act (NLRA) in setting social media policies.

The NLRA was enacted primarily to protect employees’ rights to organize, which, with the advent of social media, also takes place online. This means that employees have the right to discuss conditions of employment with each other and even a casual conversation online about working conditions can be protected under the NLRA.

Unfortunately, the NLRB has not always provided clear guidance with respect to what it wants to see in employer policies and guidelines around social media. However, that situation is changing as the Board has issued three separate reports on social media in the last 10 months.

While the first two reports served as an indication that the NLRB was scrutinizing employers’ social media policies, many employers felt that the Board’s position on what was acceptable content for social media and related policies was lacking clarity.

May 2012 report adds clarity

The most recent report, released on May 30, 2012, hones in on social media and confidentiality policies and provides employers with a roadmap for revamping their policies. For the first time, the NLRB provides a sample social media policy that it deems lawful, as well as several examples of unlawful policies and rules on topics including social media, confidentiality, privacy and contact with the media and government agencies.

The May 30 report will require nearly all employers to review and revise existing policies to make them more narrowly tailored. Here are some of the highlights:

“Section 7” rights

An employer violates the National Labor Relations Act if it maintains a policy or rule that could reasonably tend to chill employees in their exercise of protected rights (these are usually referred to as Section 7 rights). For example, a policy which chilled employees’ right to discuss terms and conditions of their employment, including wages, hours, and working conditions, would be unlawful. According to the Board, “[r]ules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful.”

The Board stressed throughout the report that it is important for employers to provide examples in their policies regarding the types of content and activity that the policy lawfully restricts. The report analyzed various actual employer social media policies – and here are some important take-away points:

A policy reviewed in the report that instructed employees not to “release confidential guest, team member or company information” was found overbroad because without examples it could be construed by employees to prevent them from discussing their wages or other conditions of employment. Similarly, a rule which prohibited employees from disseminating “non-public information” was found overbroad without defining that term.

Employers should be careful to define what is meant by “exercise good judgment.” Even requiring posts to be “accurate and not misleading” could be overbroad if not clarified or further defined by example or otherwise.

A policy which prevented employees from posting “[o]ffensive, demeaning, abusive or inappropriate remarks” was overly broad—as was a warning that employees should not “pick fights” online—because employees could interpret both provisions to restrict lawful criticism of employers or their policies.

In contrast, it was held lawful for a policy to prohibit statements, photographs, or other content “that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying” if it provides specific, lawful examples of what was considered an offensive post.

While the Board recognized that employers have a proprietary interest in their trademarks, including logos if trademarked, a prohibition of all use by employees was unlawfully overbroad. In particular, employees’ non-commercial use of an employer’s logo or trademarks while engaging in protected activities (for example, on a picket line or when engaging in protected activity on social media sites) does not infringe on the employer’s interest.

The Board deemed lawful and unambiguous a policy instructing employees to “[m]aintain the confidentiality of . . . trade secrets and private or confidential information. Trade secrets may include information regarding the development of systems, processes, products, know-how and technology.” In this example the Board noted that “Employees have no protected right to disclose trade secrets…Moreover, the Employer’s rule provides sufficient examples of prohibited disclosures.”

The Board did not find unlawful a prohibition on employees from posting anything in the name of their employer or in a manner that could be attributed to the employer. To this end, the report stated that “(a)n employer has a legitimate need for a disclaimer to protect itself from unauthorized postings made to promote its products or services.” Such a disclaimer “would not unduly burden employees in the exercise of their Section 7 right to discuss working conditions.”

The Board ruled that “savings clauses” added by employers to social media policies are insufficient to cure unlawfully overbroad policies. Savings clauses generally state that nothing in the policy should be construed to interfere with employees’ Section 7 rights. The report found that employees may not understand from the disclaimer that activities protected by the law are in fact permitted. In addition, the provisions are likely to be misunderstood since they are often written in legalese.

Review social media policies

In light of this May 30 report, employers should urgently review social media policies to ensure that they comply with the Board’s guidance and provide sufficient context and examples so as to be unambiguous from the perspective of employees. Remember that the NLRB takes the view that a company policy on almost any subject could be construed as chilling employees’ protected rights.

Additionally, the guidance gleaned from this report is not applicable solely to social media policies, but also to policies on confidentiality, media contact and employee conduct.

For a copy of the report distributed by the Board, please contact the author.

Ruth Mackey is an Associate in the Denver office of Fisher & Phillips LLP. She practices exclusively in the area of labor and employment law on behalf of employers. Contact her at 303-218-3650 or at rmackey@laborlawyers.co

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